United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
April 16, 2007
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 05-40747
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
RODOLFO MANUEL LUMBRERAS-LINERAS,
Defendant-Appellant.
Appeal from the United States District Court
For the Southern District of Texas, Laredo
USDC No. 5:04-CR-2475-1
ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES
Before JONES, Chief Judge, and JOLLY and DAVIS, Circuit Judges.
PER CURIAM:*
This court previously affirmed the conviction and
sentence of the Appellant Rodolfo Manuel Lumbreras-Lineras
(“Lineras”). On December 11, 2006, the Supreme Court vacated and
remanded the case for reconsideration in light of Lopez v.
Gonzalez, 127 S. Ct. 625 (2006).
In light of Lopez, the district court erred by enhancing
Lineras’s sentence based on a Texas conviction for possession of
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.
marijuana. Because Lineras has completed the confinement portion
of his sentence, any argument that the prison term should be
reduced is moot and the only portion of the sentence remaining for
consideration is the defendant’s term of supervised release.
However, as the Federal Public Defender notes, Lineras
presumably has been deported. In order to resentence him and
reduce his term of supervised release, FEDERAL RULE OF CRIMINAL
PROCEDURE 43 requires the defendant to be present and have the
opportunity to allocute. Because the defendant has been deported
and is legally unable, without permission of the Attorney General,
to reenter the United States to be present for a resentencing
proceeding, there is no relief we are able to grant Lineras and his
appeal is moot. See United States v. Rosenbaum-Alanis,
No. 05-41400, 2007 WL 926832 (5th Cir. March 29, 2007). The appeal
is therefore DISMISSED.
2